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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, New Paltz, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Friday, March 23, 2012

Court of Appeals upholds discipline in student speech case

Rejecting a First Amendment challenge, the Court of Appeals holds that a public school could discipline a 10 year-old student who joked in a class assignment that he wanted to blow up the school.

The case is Cuff v. Valley Central School District, decided on March 22. Bergstein & Ullrich, LLP, represents the plaintiffs. The issue was whether school officials reasonably believed the fifth grader's written statement would materially and substantially interfere with appropriate discipline at the school. A two-judge majority (Winter and Hall) said the district had the right to discipline the student by sending him home for five days. In a lengthy dissent, Judge Pooler disagreed and said the statement -- written in an "about me" assignment on an astronaut drawing -- did not disrupt school operations and was merely a clunky attempt at humor.

This case poses the question of how much a school district has to put up with when a student writes up a violent statement. Particularly since this is a 2-1 decision, I would say this case lies at the boundaries of what constitutes acceptable speech in public school. The boy did not mean any harm, and his classmates giggled at the drawing. Yet, the specter of Columbine arises anytime someone talks about violence in school, even if it's a joke. While the majority worries that the failure to discipline the boy would cause a discipline breakdown at the school, the dissent sees it differently:

While a young child’s call for the destruction of his school and the killing of his teachers may not seem to “justif[y] sounding the First Amendment bugle,” I believe that there are important, if subtle, free speech values at stake in this case.

B.C.’s teacher explicitly suggested that her students consider writing about missiles. While the concept of irony may seem well beyond the ken of an average ten-year-old, young children routinely experiment with the seeds of satire. They learn by fumbling their way to finding the boundaries between socially permissible, and even encouraged, forms of expression that employ exaggeration for rhetorical effect, and impermissible and offensive remarks that merely threaten and alienate those around them.

This young boy’s drawing was clearly not some subtle, ironic jab at his school or broader commentary about education. It was a crude joke. But the First Amendment should make us hesitate before silencing students who experiment with hyperbole for comic effect, however unknowing and unskillful that experimentation may be.

As counsel for plaintiffs, of course I cannot be objective here. So let
me run the Associated Press article that tells it like it is:

Suspension upheld for NY boy over violent drawing

By LARRY NEUMEISTER Associated Press

NEW YORK (AP) -- Acknowledging school violence nationwide, a
federal appeals court on Thursday upheld the suspension of a 10-year-old
boy for a crayon drawing expressing a desire to blow up his school and
its teachers.

But the 2nd U.S. Circuit Court
of Appeals in Manhattan was not unanimous in rejecting the First
Amendment claims of his parents. Judge Rosemary Pooler said the drawing
by the fifth grader at a Montgomery, N.Y., elementary school in Orange
County was obviously the work of a class clown.

"It
was a crude joke," Pooler wrote. "But the First Amendment should make
us hesitate before silencing students who experiment with hyperbole for
comic effect, however unknowing and unskillful that experimentation may
be."

The boy, identified in court papers only
as "B.C.," was suspended for six days in September 2007 after he showed
his drawing to classmates. Other students laughed, though one complained
to his teacher.

Writing for the majority, two
2nd Circuit judges agreed that the boy deserved punishment for his
response to an assignment to write about himself on a picture of an
astronaut including a "wish." The teacher at one point told students
they "can write about missiles," the court noted. It said it was in the
"wish" spot that B.C. wrote: "Blow up the school with the teachers in
it."

The teacher said she sent B.C. to the principal's office after a girl who seemed "very worried" told her about the drawing.

The
2nd Circuit said the discipline was appropriate particularly because
the boy had a history of drawings and writings embracing violence.

"Whether
B.C. intended his `wish' as a joke or never intended to carry out the
threat is irrelevant," the opinion said. "Nor does it matter that B.C.
lacked the capacity to carry out the threat expressed in the drawing."

The
2nd Circuit said school administrators must maintain parental
confidence in their ability to shield children from frightening behavior
and to protect safety. It said a failure to respond forcefully to the
"wish" might have eroded parental confidence in school safety, forced
the hiring of security workers or led to an enrollment decline.

The
judges noted they sit on the bench of at least the second federal
appeals court to acknowledge the need to confront school violence "given
the recent wave of school shootings that have tragically affected our
nation."

In her dissent, Pooler said the case
must be considered in the context of "our justified fears of yet another
horrific school shooting."

She said the case
that was dismissed by a lower court judge belonged before a jury, which
would learn the boy was portraying a paintball game rather than playing
out a violent fantasy. She said the jury also would learn that the girl
who complained about him had a history of sparring with him over rules
and "seems to have taken it upon herself to ensure that B.C. was
punished each and every time he did something that was even arguably
inappropriate."

"In short, a jury could
conclude that she was prim, not petrified," Pooler wrote. "The First
Amendment's protection of free speech cannot hinge entirely on the
reaction of a listener to a person's speech. If that were the case, the
First Amendment would only be as strong as the weakest, or at least the
most thin-skinned, listener in a crowd," she added.

Adam
I. Kleinberg, a lawyer for the Valley Central School District, said the
ruling "reaffirms that school officials should be afforded great
deference in their decision making."

He added:
"School officials should not be required to wait until after an
incident occurred. They can't predict the future. They can only do their
best to keep everyone safe."

Stephen Bergstein, an attorney for the parents, said he probably won't appeal.

"He's
10. It was just a little drawing. Nobody cared. That's what kids do,"
Bergstein said, noting that the boy had a paintball court in his
backyard. "There are times when you're going to make references to
violence and it doesn't mean the school's going to go into lockdown."

The boy, now 15, is in high school and doing fine, he said.

Bergstein recalled the day the boy showed up for the deposition with attorneys. "His
feet didn't touch the ground. When he trotted out of the building you
got the feeling he was going to walk around barefoot and go fishing," he
said.

1 comment:

1. A teacher gives an assignment requiring students to express their wishes.

2. A student complies with the assignment.

3. Student gets suspended for being honest.

Yes, I realize that's not how they frame it, but if they were really concerned about safety, wouldn't it have made more sense to refer the student for a psychological or psychiatric rather than suspend as punishment? If a student is angry already, how does punishing improve safety?